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2012 DIGILAW 4 (ORI)

Nabin Sahu v. State of Orissa

2012-01-03

B.K.PATEL, L.MOHAPATRA

body2012
JUDGMENT L. MOHAPATRA, J. - Both the appellants have been convicted for commission of offence under Sections 302 and 34 of the Indian Penal Code (in short 'IPC') and each one of them has been sentenced to imprisonment for life by the learned Addl. Sessions Judge, Deogarh in S.T. Case No.182/16 of 2001. 2. Appellant-Nabin Sahu is the father of appellant No,2-Sarat Sahu, Appellant-Nabin Sahu is brother-in-law of the deceased, They had some dispute relating to their homestead land in village Gohida, It is alleged that appellant-Nabin Sahu instigated his two sons, namely, appellant No.2-Sarat Sahu and Santosh Sahu to take revenge against the deceased by cutting his leg and hand. Thereafter, they chalked out a plan to call the deceased from his house in the night of occurrence with the help of one Mochi Pradhan. In the night of occurrence i.e. on 21.1.2011 when the deceased was sleeping in his house with his family members, the said accused Mochi Pradhan called the deceased and asked him to supply wooden door frame. When the deceased stated that the same was not available with his, a request was made to arrange the same from somebody else. In good faith, the deceased accompanied the said accused Mochi Pradhan to arrange the wooden door frame for him. At that time both the appellants and the other son of appellant No.1 namely, Santosh Sahu pounced upon the deceased on the road, assaulted him by means of bhujali and severed the right hand from the joint and ran away from the spot. Hearing the shout of the deceased, his wife-Sankha Naik (P.W.6) and son-Polasti Naik (P.W.7) rushed to the spot and found the accused persons assaulting the deceased. Thereafter, they shifted the deceased to the house and few hours thereafter, the deceased succumbed to the injury. In the following morning, P.W.7 lodged a written report before the A.S.I., Khairpali Out-post and a Station Diary Entry was made. The said written report was forwarded to the O.I.C., Kundheigola Police Station for registration of a case. Accordingly, the case was registered and investigation was taken up. On completion of investigation, charge sheet was submitted against four accused persons including the two appellants before us for commission of offence under Sections 302 and 34 of IPC. Accused Mouda Pradhan was charged for commission of offence under Section 201 of IPC. 3. Accordingly, the case was registered and investigation was taken up. On completion of investigation, charge sheet was submitted against four accused persons including the two appellants before us for commission of offence under Sections 302 and 34 of IPC. Accused Mouda Pradhan was charged for commission of offence under Section 201 of IPC. 3. Prosecution examined nine witnesses to bring home the charge., Out of the said nine witnesses, P. W.1 is a post occurrence witness and is also a witness to the inquest. P.W.2 is also a post occurrence witness and claims to have seen the appellants running away from the spot in a scooter. P.W.3 is also a post occurrence witness, who came to the spot after the incident took place. P.W.4 is a witness to seizure. P.W.5 is the doctor, who conducted postmortem examination. P. W.6 is the wife of deceased and P. W.7 is the son of deceased. Both P. Ws.6 and 7 were examined as eyewitnesses to the occurrence. P.W.8 is the I.O. P.W.9 is also another Police Officer, who participated in the investigation. One witness was examined on behalf of the defence. From the statements made by the accused persons recorded under Section 313 Cr. P.C. it appears that denial of the prosecution case was the main defence. 4. The trial Court accepted the evidence of two eyewitnesses, namely, P. WS.6 and7 and also relied on the medical evidence as deposed to by P.W.5 and found the two appellants guilty for commission of offence under Sections 302 and 34 of the Indian Penal Code. Rest of the accused persons were acquitted of the charges. 5. Shri Debasis Pattnaik, learned counsel appearing for the appellants drew attention of the Court to the evidence of P. Ws.6 and 7 as well as the F.I.R. lodged by P.W.7 and pointed out the inconsistencies available in the F.I.R. and their evidence recorded in course of trial. According to the learned counsel for the appellants, no reliance can be placed on the evidence of P.Ws.6 and -7, as they had tried to improve the case of the prosecution at the time of trial and projected themselves as eyewitnesses to the occurrence, even though in the F.I.R. there is no mention of the fact that either of them had seen the occurrence. It was further contended by the learned Counsel for the appellants that if the evidence of P.Ws.6 and 7 are discarded, there is no other evidence on the basis of which the appellants can be convicted for commission of the alleged offence. Learned counsel for the- State relied on the evidence of P.Ws.6 and 7, the two eyewitnesses to the occurrence and P.W.5, the doctor who conducted the postmortem examination to support the findings of the trial Court. 6. We have carefully scrutinized the evidence of all the nine witnesses examined in course of trial. Undisputedly, P. W. 7, who is son of the deceased, had lodged the F.I.R. immediately after the occurrence. He had stated in the F.I.R. that in the night of occurrence at about 9 P.M., when the deceased, P.W.6 and he were sleeping in their house, an unknown person called the deceased from outside. Some time thereafter they heard the shout of the deceased "Marigali Marigali". In order to find out what happened, both he and his mother-P.W.6 came out of the house and saw the deceased lying in an unconscious state. They also saw the appellant No.1-Nabin Sahu and appellant No.2-Sarat Sahu as well as the unknown person running away from the spot. It is also stated. in the F.I.R. that the right hand of the deceased had been cut by means of a bhujali. P.W.7, who lodged the F.I.R., in course of examination during trial stated that in the night of occurrence after taking meal while they were going to sleep, some one called his father from outside. The deceased came out and he also followed the deceased. The unknown person asked the deceased to give two door frames. The deceased informed that the door frames are not available with him, whereafter the said unknown person requested the deceased to accompany him to the village to arrange door frames for him. When the deceased reached at the gate, all the accused persons killed him. Appellant No.2-Sarat Sahu cut the right hand of the deceased with a bhujali. After assaulting the deceased, all the accused persons fled away from the spot. When the deceased reached at the gate, all the accused persons killed him. Appellant No.2-Sarat Sahu cut the right hand of the deceased with a bhujali. After assaulting the deceased, all the accused persons fled away from the spot. As is evident from the evidence of this witness recorded in course of trial, he claims to have seen the assault on the deceased whereas there is no mention of the same in the F.I.R., which had been lodged by him immediately after the occurrence. Similarly P.W.6, wife of the deceased, who also claimed to have seen the accused persons assaulting the deceased, in cross-examination admitted that she herself and P.W.7 came out of the house together. If this statement of P.W.6 is accepted, the claim of P.W.6 to have seen the occurrence cannot be accepted. It is the specific case of P.W.7 in the F.I.R. that after hearing the shout of the deceased, both he and P.W6 came out of the house, which is admitted by P.W6 in cross-examination. It is further stated in the F.I.R. that both P.Ws.6 and 7 came out of the house and they saw the deceased lying in an unconscious state. It is therefore clear on comparison of the statements made in the F.I.R. and the evidence of P.Ws.6 and 7 that both the witnesses though had not seen the actual assault on the deceased developed the prosecution story in course of trial and claimed to have seen the assault on the deceased. Apart from the above, P.W.6 stated in her evidence that four accused persons namely the present two appellants and acquitted two accused persons had assaulted the deceased and severed his right hand. The evidence of P.W.5, who conducted the postmortem examination, shows that there was only one injury. Therefore, evidence of P.W.6 that she had seen four of the accused persons assaulting the deceased is not supported by the medical evidence. Under these circumstances, it will be unsafe to rely on the evidence of P.Ws.6 and 7. 7. Learned counsel for the State relied on the evidence of P.W2, who claimed that immediately after the occurrence he had seen the appellant-Sarat Sahu and acquitted accused Mochi Pradhan going away in a scooter from the spot. Under these circumstances, it will be unsafe to rely on the evidence of P.Ws.6 and 7. 7. Learned counsel for the State relied on the evidence of P.W2, who claimed that immediately after the occurrence he had seen the appellant-Sarat Sahu and acquitted accused Mochi Pradhan going away in a scooter from the spot. From the evidence of the I.O., it appears that in course of investigation he had not stated so before the I.O. Therefore, the above statement of P.W.2 also cannot be accepted having been contradicted by the I.O. Learned counsel for the State has also not been able to point out any other evidence, on the basis of which the order of conviction and sentence can be sustained. 8. Having held that it is unsafe to rely on the evidence of P.Ws.6 and 7, the so-called eyewitnesses to the occurrence, we find no other evidence, on the basis of which the impugned order can be sustained. Accordingly, we allow the appeal, set aside the impugned judgment and order dated 20.2.2003 passed by the learned Addl. Sessions judge, Deogarh in S.T. Case No.182/16 of 2001 convicting the appellants for commission of offence under Sections 302 and 34 of the Indian Penal Code and sentencing them to undergo imprisonment for life and acquit them of the said charges. It is stated at the Bar that appellant No.1-Nabin Sahu is on bail and appellant No.2-Sarat Sahu is in custody. It is therefore further directed that appellant No.2-Sarat Sahu be set at liberty forthwith, unless his detention is required in any other case. Appeal allowed.